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OPINION OF THE JUDGES 


SUPREME COURT OF VERMONT, 


CONSTITUTIONALITY 


^ An Act Providing for Soldiers Voting•” 


ST. ALBANS ; 

wniriNa anl> da7I3, printshs. 

18G4. 















Ol’lNlON OF THE JUDOES 


OF THE 


SUPREME COURT OF VERMONT, 


ON THE 


CONSTITUTrONALITY 


OF 


“ An Act Providing for Soldiers Voting-” 





0 D > 


ST. ALBANS : 

WHITINO AND DAVIS, STEAAI PRINTERS. 


1864. 





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STATE OF VERMONT. 




A PROCLAMATION. 


I ^ I ♦ I » 

Whereas, the General Assembly of tlie State of Ver¬ 
mont, at its annual session of 1863, passed an Act en¬ 
titled An Act Providing for Soldiers voting.” the 
twelfth section of which act is as follows: 

“ Skc. 12 This act shall not take eflect until the Governor snbsiits the same to the 
.Judges of the Supreme Court with the inquiry, Are the provisions of this act constitu- 
ional ? and until the Governor has obtained in writing''thc opinion of said Judges 
tthcreon : and if said Judges decide that the provisions of the Act or certain parts thereof 
are unconstitutional, then the same or such parts thereof are unconstitutional, then the 
same or such parts thereof as said Judges shall decide are unconstitutional, shalF be 
null and void, and the residue shall remain in full force and virtue.” 

And, wliereas, in pursuance of said section, on the 
Twentieth day of January, A.D. 1864, I submitted a copy 
of said Act to the Judges of the Supreme Court with the 
inquiry, Are the provisions of this act constitutional?” 
and the Judges of the Suprerno Court having given me in 
writing their opinion that the provisions of said act pro¬ 
viding for soldiers voting for the following oflScers, viz.; 




4 


Governor, Lieutenant Governor, and Treasurer, are un 
constitutional, and that the provisions of said act providing 
for soldiers voting for Members of Congress and Electors 
for President and Vice President of the United States are 
constitutional. 

Therefore, I, John Gregory Smith, Governor of Ver- 
mont, do declare that so much of the act entitled, “An 
Act providing for Soldiers Voting.” approved November 
11, 1863, as provides for taking the votes of soldiers for 
Members of Congress and electors of President and Vice 
President of the United States, having been declared 
constitutional by the Judges of the Supreme Court, is the 
law of this State. 

Given under my hand, and seal of tliQ State, in Executive Chombtr 
at St. Albans, this Tenth day of May, in the year of our Lord 
One Thousand L ight Hundred and Sixty Four, and of the 
Independence of the United States the Eighty Eighth. 

J. GPEGORY SMITH. 

By Ilis Excellency the Governor, 

Samuel Williams, Secretary of 
Civil and Military Affairs, 


t 



5 


AN ACT PROVIDING FOR SOLDIERS VOTING. 

It is hereby enacted by the General Assembly of the Stale 
of Vermont: 

Skc. 1. All qualified electors of this State who shall 
be in the actual military service of the United States^ 
either within the State or without the same, on the days 
appointed for elections by the Constitution of the State 
ot Vermont, and the laws of Congress in any year, shall 
bo entitled to exercise the right of suffrage at the several 
posts, camps or places where the regiment or battery of 
artillery, or part of a regiment, not less than one company, 
or part of a company under a separate command, to which 
such electors belong, may be on that day, as fully as if 
such electors were present at the places in this State 
where such election may be held, and where such persons 
would be entitled to vote, any provisions of law now in 
force to the contrary notwithstanding. Provided^ that 
this section shall not extend to, and include iiny person 
in the regular or standing army of the United States, nor 
any person in any regiment, battery or company organized 
and officered out of this State. 

Sec. 2. To carry in|:o effect the provisions of the 
preceding section, elections may be held at the several 
posts, camps or places in said section mentioned, which 
elections shall be conducted, so far as practicable and not 
inconsistent with the provisions ot this act, in the manner 
prescribed by the general election laws of this State. 

Sec. 3. At the election, to be held on the first Tuesday 
of September, each elector authorised to vote by this act, 
shall have the right to vote for the following officers, 
viz : Governor, Lieutenant Governor, Treasurer, and 
Members of Congress, At the election for electors, to 





6 


be held on the first Tuesday of November, each elector 
authorized to vote by this act shall have the right to 
vote for electors. 

Sec. 4, The vote shall be taken by companies. The 
three ranking officers in each company of infantry, or 
cavalry, or battery of artillery, shall act as special con¬ 
stables to preside at the elections held under the provi¬ 
sions of this act. In ease of the absence, or inability, or 
refusal to act of any of the officers hereinbefore 
named, their duties as such constables shall be performed 
by the officers next in rank. The officer highest in rank 
so acting in such company, shall be the chairman of the 
board of constables. The board of constables of each 
company shall make a separate canvass and statement of 
the result in writing, of the votes cast by such company 
as hereinafter provided. The regimental and staff officers 
of each regiment shall bo entitled to vote at the polls 
opened in any company of the regiment to which they 
belong. 

Sec. 5. The officers who shall act as constables under 
this act shall appoint two electors to act as clerks of 
elections. 

Sec. G. Previous to receiving any votes, such con¬ 
stables and clerks shall severally take an oath or affirma¬ 
tion that they will support the Constitution of the United 
States and of the State of Vermont, and will perform 
their duties as constables or clerks according to law, and 
will studiously endeavor to prevent all fraud, deceit, or 
abuse in conducting the same. This oath or affirmation 
shall be either printed or in writing, or partly written and 
partly printed, shall be subscribed by the i)ersons taking' 
the same, and niay be administered by either of said 
constables, and shall be annexed to, anc[ Returned with 
the poll books as hoveinafter provided, 




7 


Sec. 7. The polls of the election shall be opened and 
closed at such hours as the constables or a majority of 
them shall determine. Provided, that time shall be given 
for all voters in the company or battery to vote; and 
that notice ol the time of closing the polls shall be given 
at least one hour before the closing of the same. 

Sec. 8. The ballots to be voted for at the elections 
held under this act, shall have printed or written at the 
top of the ballot, the name of the county in which the 
person offering to vote is a voter, and the constable shall 
refuse to receive any ballot which does not thus show 
the name of the county. Each ballot, in addition to the 
name of the county; shall have printed or written upon it 
the name of the person voted for, Avith a pertinent desig¬ 
nation of the office which he or they may be intended to 
fill. The ballot thus prepared shall be on one piece, and 
all the ballots shall be deposited in one box ; and it is 
the duty of the constable to be satisfied that the person 
offering to vote is a legal voter of the county which 
is shoAvn at the top of the ballot. 

Sec. 9. It shall be the duty of each of such constables, 
and the privilege of each elector, to challenge any person 
offering to vote,Avhen he shall know or have any reason to 
suspect or believe that such person is not a qualified 
elector; and to every person challenged by any constable 
or qualified elector, one of the constables shall administer 
an oath that he will true and full ansAver make to all 
questions touching his residence, and qualifications as an 
elector at the election; and the same questions in sub¬ 
stance shall be put, and the same proceedings had, as may 
be required at general elections in this State; and the 
case of such person so challenged shall be decided by a 
majority of the constables. 

Sec. 10. The clerks shall keep correct poll lists, con 
taining the names of the voters and their respective places 


'8 


of residence in this State, giving the name of the town or 
city and county in which they severally have a residence, 
which lists shall be certified by the constables, or a ma¬ 
jority of them, and clerks, to be correct. 

Sec. 11. After the polls are closed the constables shall 
canvass the votes cast and shall make a statement of the 
result in writing, which canvass and statement shall be 
made by counties, so far as practicable. And a copy of 
such statement, duly certified to be correct by the con¬ 
stables, or a majority of them, shall be transmitted to the 
Governor of this State, together with one of the poll lists, 
and a like copy with the other poll list, shall be trans¬ 
mitted to , the Secretary of State. The said constables 
sliall also cause all the ballots to be sealed up and trans¬ 
mitted to the Secretary of State, with the statement and 
poll lists; and the Secretary of State shall return said 
votes to the General Assembly, to be canvassed the 
same as provided for in reference to votes for the same 
officers, cast in this State. 

Sec. 12. This act shall not take effect until the Go¬ 
vernor submits the same to the Judges of the Supreme 
Court, with the inquiry. Are the provisions of this act 
constitutional ? and, until the Governor has obtained in 
writing the opinion of said Judges thereon; and if said 
Judges decide that the provisions of the act or certain 
parts thereof are unconstitutional, then the same or such 
parts thereof as said Judges shall decide are unconstitu¬ 
tional, shall be null and void, and the residue shall remain 
in full force and virtue. 

Approved, November 11, 18G3. 


OPINION 


TO HIS EXCELLENCY: 

John Gregory Smith, Governor op Vermont. 

Your communication, requiring the opinion of the 
Judges of the Supreme Court upon the constitutionality 
of An act providing for soldiers voting,’’ was received 
in January last, but the constant engagement of all the 
members of the Court on the winter circuit, from that time 
until within a few days, has prevented them from giving 
the subject that examination and attention which its im¬ 
portance demands, at an earlier day, and delayed our 
answer to the present time, The act provides generally 
for taking the votes of all qualified electors of this State 
-in the volunteer military service of the United States 
wherever the}? may be, within or without the State, on 
the days provided by law, for the election of Governor, 
Lieutenant Governor, and Treasurer of the State, and 
for Members of Congress, and electors of President and 
Vice President. 

The act contains various provisions as to the manner 
of voting, intended to secure fairness, and prevent fraud 
or mistake, and then provides that the ballots thus taken, 
and the voting lists, required to be kept by the olficers 


10 


presiding at such elections, shall be returned to the Sec¬ 
retary of State, who shall return said votes to the General 
Assembly, to be counted with the votes cast in the State 
for the same officers. 

The 12th section of the act provides That this act 
shall not take effect until the Governor submits the same 
to the Judges ol-the Supreme Court, with the inquiry, 
‘ Are the provisions of this act constitutional V and until 
the Governor has obtained in writing the opinion of said 
.Judges thereon; and if the said Judges decide that the 
provisions of the act, or certain parts thereof, are uncon- 
mstitutional, then the same, or such parts thereof as said 
Judges shall decide are unconstitutional, shall be null and 
void, and the residue thereof shall remain in full force and 
virtue.'’ 

The single question submitted to the Judges, as we 
understand it, is, as to the constitutional power of the 
■Legislature to authorize the taking of votes without the 
State, for tlie officers named in the act. Our examination, 
therefore has been, and our answer will be, strictly con- 
ffned to that. If the Legislature can constitutionally au- 
Ihorize votes to be taken without the State, the means or 
machinery by which it is to be effectuated, must necessar¬ 
ily be mainly within the judgment and discretion of the 
framers oft he law, and any objection to suchmeans, could 
hardly rise to the dignity of a constitutional question. 

Nor do we understand that any question is, or can be 
jnade, as to the right of any freeman of this State, who 
has volunteered into the military service of the United 
States, to give his vote within the State. The absence 
of such persons from the State, in such service, is not a 
removal, or change of residence, by which the right of 
voting is lost, but like an absence from the State upon a 
journey, or business, is of a temporary character, and the 
domicilf or residence, continues within the State, while th o 




11 


person is actually without the State. The question is 
narrowed, therefore, to the point, whether the constitu¬ 
tion requires the votes by which the officers named in 
this act are elected, to be given ivitUn this Stated 

Several States have passed laws similar to the act in 
question, which have been before their respective courts 
for examination, and, in all, it has been either expressly 
or tacitly conceded, that unless some constitutional re¬ 
striction required the voting to be within the State, it 
was perfectly competent for the Legislature to provide 
that persons legally entitled to vote in the State, might 
cast their votes at some place without the State, and be 
counted in the election. We proceed, therefore, to con¬ 
sider the question, in the first place, as to the State offi¬ 
cers named in the act. Governor, Lieutenant Governor, 
and Treasurer. 

The first provision in the constitution of this State in 
reference to elections, is of representatives to the General 
Assembly. 

Sec. 7, of part the second, is as follows :™“ In order 
that the freemen of this State might enjoy the benefit of 
election as equally as may be, each town within this State 
that consists, or may consist, of eighty taxable inhabitants, 
within one septenary, or seven years, next after establish¬ 
ing this constitution, may hold elections therein, and 
choose each two representatives ; and each other inhabit¬ 
ed town in this State, may, in, like manner, choose one 
representative, to represent them in the General Assembly, 
during the septenary, or seven years ; and after that, each 
inhabited town may, in like manner, hold such election, 
and choose one representative, forever thereafter.’^ 

Sec. 8, of part second, provides that representatives 
shall be chosen by ballot by the freemen of every town 
in this State on the first Tuesday annually forever. 





12 


It is conceded, as we understand, that under the above 
provisions of the constitution, the meetings of the free¬ 
men for the election of representatives to the State Legis¬ 
lature, must be held within the town, and that it would not 
be within the constitutional power of the Legislature to 
provide for their being holden elsewhere, or that votes 
given elsewhere than in such meeting, could be received. 
Hence, the act in question does not provide for taking 
the votes of the soldiers from this State, for town repre¬ 
sentatives. Sec. 10, part 2, is as follows The freemen 
of each town shall, on the day of election for choosing 
representatives to attend the General Assembly, bring in 
their votes for Governor, with his name fairly written, to 
the constable, who shall seal them up, and write on them 
^ Votes for Governor,’ and deliver them to the represen¬ 
tative chosen to attend the General Assembly. And at 
the opening of the General Assembly there shall be a 
committee appointed out of the Assembly, who, after 
being duly sworn to the faithful discharge of their trust, 
shall proceed to receive, sort, and count the votes for the 
Governor, and declare the person who has the major part 
of the votes, to be governor for the year ensuing. The 
Lieutenant Governor and Treasurer shall be chosen in 
the manner above directed.” 

This section does not, in terms, require that the voting 
for State Officers shall be in the same place, or meeting, 
at which the representative is chosen, but if that is its 
fair spirit, and meaning, it is equally imperative. The 
fundamental law of the State must not receive any strained 
or forced construction, or be made to yield by reason of 
any peculiar exigency in public or private matters, but 
must be kept and preserved at all times, the same uniform 
test and guide, for the citizen, as well as every department 
of the government establised under it. Something may 
be learned of the understanding of the framers of the 



13 


constitution, and of the people who adopted it, by a brief 
reference to the history of the adoption of the constitu 
tion, and the early legislation under it. 

The first constitution of this State was formed by a 
convention of delegates from the several towns, which 
met at Windsor, on the 2d day of July, 1777. This was 
just at the time of the invasion from the North of the 
British army, under Burgoyne, which caused great alarm 
and confusion among the inhabitants, especially in the 
western part of the State, where many abandoned their 
homes. The disturbed condition caused by this, and 
also by the conflicting claims of jurisdiction by New York, 
and New Hampshire, was such, that this constitution was 
never submitted to, or ratified by any, vote of the people. 

But notwithstanding, a State Governpaent was organiz¬ 
ed under it, and the first Legislature met at Windsor, on the 
12th day of March, 1778. The provisions of the original 
constitution, for the election of representatives to the Le 
gislature, and of State officers, were in very nearly the 
same language as the sections of the present constitution 
already quoted. The second session of the Legislature 
was holden at Bennington, in February, 1779. At that 
session an act was passed for regulating the election of 
Governor, Deputy Governor, Council, and Treasurer.” 

That act, so far as need be quoted, was in the following 
words The constables in the several towns in this 
State, without further order, shall, by themselves, or some 
person deputed by them, warn all the freemen in their 
respective towns to meet together in some suitable place, 
by them appointed, in said town, on the first Tuesday of 
September annually, at nine of the clock in the morning, 
at which time shall be read the freeman’s oath, and the 
last paragraph of this act, against disorderly voting; who 
shall then proceed, first to choose representatives to at- 





14 


tend the General Assembly for the year ensuing, on the 
second Thursday of the succeeding October. Then the 
freemen shall proceed to bring into the constable present, 
the name of him whom they would choose to be Governor 
for the year ensuing, fairly written on a piece of paper, 
which the said constable shall receive, and, in the presence 
of the freemen, seal up the same in a piece of paper, and 
write on the outside of the paper so sealed, the name of 
the town, and then add these words, viz.: Votes for the 
Governor \ in like manner for the Deputy Governor, and 
Treasurer.’^ Some question having arisen as to the bind¬ 
ing force of the constitution, the Legislature, at their June 
session, 1782, held at Windsor, passed an act declaring it 
valid and binding, as a part of the laws of this State. The 
first Council of Censors elected under the constitution in 
1785, proposed many amendments to the constitution, to 
be submitted to a convention of the people for adoption, 
and the same was done by the second council, elected in 
1792, some of which were adopted by the conventions 
called to act upon them. No substantial change, however, 
was proposed as to the manner of electing Governor, and 
other State officers, and the original prevision was pre¬ 
served substantially unchanged. The convention called 
by the second council, and which met in 1793, made a re¬ 
cast of the constitution, embracing all the amendments 
adopted by the two conventions, making it, in form at 
least, an adoption of the entire instrument, by that con¬ 
vention, and it was promulgated, and has remained in that 
form, with subsequently adopted amendments added 
thereto. 

During all this time the act of 1779, above quoted, re¬ 
mained in force. But a small part of the State was set¬ 
tled at this period, and that sparsely, and all public affairs 
were conducted by a few leading men among the settlers, 




15 


eo that the framiDg of the constitution, and the early le> 
gislation under it, were substantially the work of the 
same hands. 

The act of 1779 shows clearly how this provision of the 
constitution was then understood; that the votes for Go¬ 
vernor, Lieutenant Governor, and Treasurer, were to be 
given in the same meeting at which representatives were 
elected, that the votes were to be brought in, and deli¬ 
vered to the constable of the present^ and to be sealed 

up in the presence of the freemen. 

The uniform and uninterrupted requirement of the law, 
and the usage and practice under it, from the organization 
of the State, to the present time has been, that the voting 
for Governor, and other State officers, elected by the 
people, has been in freemen’s meeting,” the same in 
which the representatives have been chosen. 

In the opinion of the Supreme Court of Connecticut, 
given upon the constitutionality of a similar law, proposed 
in that State, it is said Ihe convention found the 
^ freeman’s meeting’ a distinct and peculiar feature in the 
political system of the State, as old as its history. It 
originated in 1639, in the compact or constitution formed 
by the towns of Hartford, Windsor, and Weathersfield, in 
a provision for the warning of a ^ freeman’s meeting,’ to 
elect deputies from each town'to the General Court. From 
that year, and after the merger of the New Haven colony, 
under the charter of Charles, there has never been an 
election hy the people, of representatives or State officers, 
in any other manner or place. The convention adopted 
this feature, as they did in the main the other institutions 
of the State, changing its name to ^ elector’s meeting.’ ” 

This language is, in a good measure, applicable to this 
State also. A large proportion of the leading men in the 
early settlement of this State were from the State of Con- 



16 


necticut, and the public instiutions, and forms of govern¬ 
ment, were mainly fashioned upon those of that State. 
So far was this carried, that in our early legislation it was 
common for the Legislature to enact that certain offences 
should be punished as provided in the Connecticut law 
book.’’ In the early settlements in the State, the first form 
of governmental authority was the town meeting^ and al¬ 
most the first form of an official was the town constable. 
Until the formation of a constitution, and a State govern¬ 
ment under it, all governmental power was in the town, 
or by delegates from the towns, and committees of 
safety,” chosen by such delegates. 

In our opinion, there is no reasonable ground of doubt, 
that when the constitution requires the votes for Governor 
to be “ brought in to the constable,” it means the con¬ 
stable of the town, the presiding officer in the freeman’s 
meeting. It has been suggested that the office of con¬ 
stable is one not created, or required by the constitution; 
that it would be perfectly competent for the Legislature 
to abolish the office, and provide that some other officer 
should preside in freeman’s meetings, as they have al¬ 
ready, in the case of the absence or inability of the con¬ 
stable. 

But, granting all this to be true, it proves nothing, 
provided the constitution, in the use of the word con¬ 
stable, meant the constable of the town, whose official 
authority was, of course, by law limited to the town, and 
who could not legally act officially, either in receiving 
votes, or otherwise, beyond its limits. 

For, although the Legislature might have power to 
provide some other officer to preside in the meeting, it 
would still remain equally clear that the constitution in¬ 
tended the voting to be in the town, or freeman's meeting. 

The whole tenor and spirit of the provisions of the 




17 


constitution, as it seems to us, point in this direction. 
The votes for Governor are required to be given on the 
same day representatives are chosen, the meetings for 
the choice of which must be within the several towns. 
If meetings could bo held at other places, without any 
town in the State, why the requirement that it should be 
on the same day? The language used—“ shall bring in 
their votes’’—is significant also. Following the previous 
direction for choosing representatives, it evidently means 
the same meeting, on the same occasion. 

The further provision that the constable shall seal up the 
votes, and deliver them to the representative chosen to 
the General Assembly, is in unison with the same idea; 
that the choice of representative, the voting for State 
ofiicers, the sealing up and delivery of the votes by the 
constable to the representative, are all to be simultaneous 
and concurrent acts, performed upon one and the same 
occasion. 

We have heard it suggested, that though this may be 
the true meaning of the language of the constitution, still 
that there is no prohibition against voting elsewhere, and 
that therefore a law authorizing votes at other places, 
and without the State, is not a violation of the constitution. 

Upon this point we cannot better express our own 
ideas, than to quote the language of the Supreme Court 
of Iowa, in a recent case upon this same general subject. 

In either event, the constitution is to be taken as a clear 
and full mandate, and the Legislature cannot change, ex¬ 
tend, or control, its meaning. Thus, if the constitution 
declares that a thing shall be done in a particular manner 
or way, it is implied necessarily that it shall not be done 
in any other. To illustrate—If it declares that the votes 
of the electors shall be cast at a particular place, it is not 
necessary to prohibit by expres/a words their being cast 



18 


at any other. But if there is no such express declaration, 
and none fairly to be implied, it is within the power of 
the Legislature to fix the place.’^ 

The Legislatures of several States have passed, or pro¬ 
posed to pass, laws similar to the one under consideration, 
several of which have received a judicial examination, 
and it is proper that they be here referred to, although 
none of them are precisely in point, owing to the differ¬ 
ences in State constitutions, yet the principles upon which 
the decisions have proceeded, may aid in solving the 
question under our own. The first case arose in Penn¬ 
sylvania, and, being a case of contested election, came 
before the court in the regular course of judicial proceed¬ 
ing, and was fully argued by learned counsel. 

The provision of the Pennsylvania constitution, upon 
which the validity of their law was to be decided, was in 
the following words 

“ In elections by the citizens, every white freeman, of 
the age of Twenty One years, having resided in the State 
one year, and in the election district loliere he o ffers to vote 
ten days immediately 'preceding such election, and within 
two years paid a State or county tax, which shall have 
been assessed at least ten days before the election, shall 
enjoy the rights of an elector.” 

The case was examined and discussed with very great 
fullness and ability by the court, and they held t]mtelectio 7 i 
districts, within the meaning of their constitution, denoted 
territorial subdivisions of the State; that the right ol 
voting, by tlie constitution, must be exercised within the 
district; and that a law authorizing citizens of the State 
in the military service of the United States, to give their 
votes without the State, was contrary to the constitution, 
and void. The opinion of the court is very lengthy, and 
quite exhaustive of the whole subject, but we have no 



19 


space to allow (quoting from it. The case may be found 
reported in the American Law Register, January No., 
1863, Chase V. Miller. The question was next presented 
in Connecticut. A law of this character was proposed in 
their Legislature, and, in pursuance to a law and usage 
in that State, the Judges of the Supremo Court were 
convened by the Governor, to advise as to the constitu¬ 
tional power of the Legislature to enact such a law. 
Upon consideration, the Judges certified their unanimous 
opinion to be, that such a law, in respect to the election 
of Governor, and various other State officers, was not 
warranted by their constitution. 

The constitution of that State provides that “ The 
meetings of the electors, for the election of the several 
State officers, by law annually to be elected, and Members 
of the General Assembly of this State, shall be hoiden on 
the first Monday of April in each year and also that 
“ At tlie meetings of the electors, held in the several 
towns in this State in April annually, after the election of 
representatives, the electors present sIihII be called upon 
to bring in their written ballots for Senators, Ac.” Very 
similar language is used in the constitution in reference 
to the election of Governor, and various other State offi¬ 
cers. 

In the opinion of the Judges, this language of the con¬ 
stitution required that the votes cast for Senators, Go¬ 
vernor, Ac., should be in elector’s meetings^ held in the 
several towns in the State. 

The whole subject was again ably and thoroughly dis¬ 
cussed in the opinion of the court, but we can only refer 
to the report, 30 Con. Report, 591. At the Juno Session, 
1863, of the Now Hampshire Legislature, a law was pro¬ 
posed, authorizing every qualified voter of that State, in 
the military or naval service of the United States, to ap« 



20 


point an attorney to deposit his vote for him at his place 
of residence, at any election for State, counly, or town 
officers in that State. 

By a resolution of the Legislature, the Justices of the 
Supreme Judicial Court of that State, Avere requested to 
give their opinion as to the constitutionality of the pro¬ 
posed law. The opinion was given against the constitu¬ 
tionality of the law, the court holding that by their con¬ 
stitution the right of voting must be exercised by the 
voter in person, and not be delegated to, or performed by 
an agent or attorney ; and that by their constitution the 
right must be exercised by the voter within tlie State, at 
the times and places pointed out by the constitution. It 
is needless to quote from the NeAV Hampshire constitution, 
as the very form of the proposed law shoAvs that it Avas 
not claimed that the right of voting could be exercised 
Avithout the State. The opinion of the Judges may be 
found in Am. LaAv Beg., Oct., 1863, 740. The remaining 
and latest discision upon the subject that Ave have met 
Avith, is from loAva. Several cases came before the court, 
all involving the question of the legality of votes cast 
Avithout the State, by citizens and voters of the State in 
the military service of the United States, for certain State 
and county officers. The Legislature of the State had 
passed a law authorizing such votes cast Avithout the 
State, to be received and counted in such elections, and 
the question was as to the validity of the laAv. The con¬ 
stitution of Iowa contains this clause, ‘‘ Every Avhite male 
citizen ot the United States, of the age of twenty one 
years, who shall have been a resident of this State six 
months next preceding the election, and of iite county in 
which he claims his vote sixty days, shall be entitled to vote 
at all elections, Avhich are noAv, or may be, authorized by 
laAv.” 






21 


It appears from the report of these cases in the Am. 
Law Reg., ^March, 1864, page 276, that the (piestion was 
fully argued by counsel, and received the full and careful 
consideration of the court. The court docidcTl that the 
law of tlie State in question was constitutional; that the 
article in the constitution above quoted, only delines tlie 
qualifications of voters, and docs not prescribe the jjZacc 
whore the elective franchise is to be exercised. The 
court, in the opinion given by Wright, J. cite the cases 
from Pennsylvania, Connecticut, and Now Hampshire Avith 
approbation, and advance no principle of constitutional 
law at variance Avith tlieiii. The argument of tlie courf., 
by which the language of the section above quoted is 
made to apply to the general qualification of the voter, 
and not to the place of A^oting, is exceedingly subtle and 
ingenious, and avc are not prepared to say it is not sound, 
but it seems to us quite difficult to make this and the 
Pennsylvania case stand together, though the opinion 
attempts it. Construed by the plain and natural rules of 
construction that should prevail in the interpretation of 
constitutions, “ tohere he offers to votc,^^ and imvhich he 
claims his vote,” as applied to the subject, mean the 
same thing. It is not at all necessary for our purpose 
to undertake the determination of the respective sound¬ 
ness of the tAvo decisions, as neither is sufficiently like 
our oAvn case, to have any controlling influence. It is 
quite apparent, hoAvever, that tlie loAva court entertciincd 
great doubt as to the soundness of their oaaui construction, 
as they go on to prove, by argument, and authority, that 
it is their duty to uph.old the laAv, unless it is clearly, 
pably, and iilojmly inconsistent Avith the provisions of the 
i-onstitution. That this becomes their duty, because the 
constitutionality of the laAv had been pronounced in favor 
of by the Legislative and Executive bi'anches of the Go- 
vernniout) acting in tlioir official eapaffities, and upon 


22 


their official oaths. We are not prepared to question the 
reasoning upon this point, but if we could regard tiie 
question under our constitution, as really of a doubtI’ul 
character, Ave cannot shelter ourselves behind, or rest our 
own judgment upon,, the prejudgmont of the other co¬ 
ordinate branches of the government. From the manner 
in which our law Avas passed, it does not appear that any 
expression of opinion can be gathered from the action of 
the Legislature, or the Executive. The laAv Avas to be in 
force, or not, as the answer of the Judges should be. The 
most that can be gathered from the passage of the act, as 
to the opinions of the Legislative and Executive depart¬ 
ments, is, that they Avould favor such a law, if it is con¬ 
stitutional ; in this opinion Ave should doubtless fully 
concur. 

We do not regard these decisions in the several States 
as having any very direct bearing upon the question be¬ 
fore us, except the decision in Connecticut. That one is 
quite analagous, as the provisions of the Connecticut 
constitution are so nearly like our own, and are not more 
restrictive of the poAver of the Legislature than those- ol’ 
our OAvn State. 

Looking to the language of our constitution, the state 
of things existing at the time of its fonnation, tlie early 
legislation under it, the uniform legislation and usage of 
the State since, and the various discussions and decisi(uis 
in other States, avo are clearly satisfied that by tlie fair 
construction of our censtitution, the right of voting for 
Governor, and other State officers, can only be exercised 
Avithin the State, in the freeman’s meetings,” to bo hold 
Avithin the toAviis on the first Tuesday of September in 
each year. 

We appreciate fully the noble patriotism of our citizens 
Avho haA^e voluntarily gone forth to peril their lives in 



23 


the (Icfcnce of the constitution and government, and would be the 
hist to deprive tliem of tlie exercise of any civil right,but, as was 
well said by the Pennsylvania court, “ While such men light for 
the constitution, they do not expect Judges to sap and mine it by 
judicial construction.” 

J’lie j)owcr of the Legislature to authorize votes to be cast with¬ 
out I lie State, for representatives in Congress, and electors of 
President and Vice Ih'esident, depends upon entirely different con¬ 
siderations. 

It cannot be claimed to lie contrary to any provisions of the 
constitution of this State, for the constitution is entirely silent upon 
the subject, and the contsitution of this State, with substantially 
the same jirovisions as to voting as now contained, was established 
several years jirior te the admission of the State into the Federal 
Union. 'I'lie law to this extent must therefore be regarded as 
valid, unless it contravenes some express, or implied, provision of 
the. constitution of the United States, or some law of Congre.ss on 
the subject, coming within the control given them by the consti¬ 
tution. Sec. 2 of Art. 1 of the United States constitution pro¬ 
vides—“ J'he hou.se of repre.sentatives shall he composed of mem¬ 
bers c.ho.sen every second year by the people of the several States, 
and the electors in each State shall have the qualifications requisite 
for electors of the most numerous branch of the State Legislature.” 

Sec. 4, of Art. 1, is as follows:—“The times, places, and 
manner of holding elections for senators and representatives, shall 
be prescribed in each State by the Legislature thereof, but the Con¬ 
gress may at any time, by law, make or alter such regulations, 

excejit as to the ])lace of choosing sentators.” 

i 

The.se are the only clauses of the constitution bearing upon the 
election ot* representatives in Congress. It cannot be claimed that 
anything is established by these as to time ov place of voting. The 
whole subject is entrusted to the State J^iegislature, subject to the 
control of Congress. As we have already seen, if the constitution 
does not prescribe the time, and place, it rests wholly in the dis¬ 
cretion of the Legislature to establish them by law. 




24 


We are not aware of any act of Congress upon the subject of 
electing members of Congress, except to require that they should 
be chosen by districts. 

Sec. 1, of Art. 2, provides for the choice of electors, and is as 
1‘oilows: — 

“ Kach State shall appoint, in such manner Jis the Legislature 
thereof may direct, a number of electors equal to the whole mam- 
ber of senators and representatives to which the State may be 
entitled in the Congress, but no senator, or representative, or 
person holding an oHice of trust or profit under the United States, 
shall be appointed an elector, 'fhe Congress may determine the 
time of clmosing the electors, and the day on which they sliall give 
their votes, which day shall bo the same throughout the United 
States ” Under this ])rovision, the appointment of electors has 
been variously provided for liy the State Legislatures. In some 
States the Legislature have directly chosen the electors themselves. 
This mode ol' election was followed in this State, as we now re¬ 
collect, down to 1821. In other States they have been chosen by 
general ticket throughout the whole State, and in others the Le¬ 
gislature liave divided the State into election district.s, for the 
rlioice of electors. All the.se various modes of election have been 
regarded as taiidy within the power of the Legislatures. The only 
power given Congress, is that of fixing the time of the election. 
This power they have exercised. 

In 1792, Congress pa.ssed an act, requiring the choice of electors 
in each State to be made within thii*ty-four days preceding the 
first Wednesday in December, and the electors themselves to meet, 
and cast their voles on that day. 

In 1815 an act was passed by Congress, requiring the choice of 
electors to be made in all the States on l,he d\ie.sday next following 
the first Monday in November of the year designated for a presi¬ 
dential election, with power to the State Legislatures to provide 
for filling any vacancy that may occur. Under thi.s, our Legisla¬ 
ture have provided that, in case of a vacancy at the meeting of the 
electors, the residue of the electors may fill it. Upon the principles 
already alluded to, there would seem to be no ground to question the 





25 


poTver of the Legislature to authorize voting for electors, as they 
have done by this bill. Voting for representatives to Congress, and 
lor electors, has never been understood by our Legislature as ef¬ 
fected by the provisions of onr constitution. It has frequently 
happened that congressional elections, and presidential elections 
have occurred while our Legislature has been in session, and it has 
been common for the Legislature to provide by special act, to allow 
members of the Legislature, and others in attendance on the Le¬ 
gislature, voters in such district, to vote at Montpelier, though not 
.within the congressional district, and also to vote for electors. The 
propriety of such action we have never heard questioned. ^ 

In the various cases that have arisen in other States, we do not 
tind that the question of the validity of such laws, as applied to 
voting for electors, and representatives in Congress, has been dis¬ 
cussed at all; whether, because it has been regarded, as we regard 
it, free of doubt under the constitution of the United Statts, or 
that there has yet been no occasion for such discussion, we do not 
know. 

It is proper that we should notice a clerical error in the third 
section of the act submitted to us. The day of the election of 
electors, is designated as the first Tuesday of November. The 
first Tuesday after the first Monday in November, is the day fixed 
by the act of Congress, which will be the second Tuesday of next 
November. We notice this, that it may be corrected in time- 

The examination of the subject has been attended with great 
embarrassment, as we have not had the advantage of argument by 
counsel, to present either side of the question; and the ofiiciai 
engagements of the several members of the court have been such, 
that it has not been possible tor them to be all piesent togeiher at 
any time to discuss the subject, and compare views and reasons. 
We hope, however, to have been able to make our views of the 
question understood. 

We therefore certify to your Excellency, that, in the opinion of 
the Judges of the Supreme Court, so much of the act in question 
as authorizes votes to be given for Governor, Lieut. Governor, and 


26 


Treasurer, without the State, or at any place, except in a /rerf- 
man's m",eting^ holden in some town within the State, is unconsti¬ 
tutional ; and that so much of said act as authorizes such voting 
for Members of Congress, and electors, is not contrary to any ' 
provision of the constitution of this State, or of the United States. 

St. Johnsbury, April 1. 1864. 

LUKE P. POLAND. ^ 

ASA OWEN ALDIS.‘ j 

JOHN PIERPOINT. I Judges of the 

JAMES BARRETT. \ Supreme Court 

LOYAE C. KELLOGG. | of Vermont, 

ASAHEL PECK. J 











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